Tag Archives: legal

The last couple of weeks, I’ve been following along on the Dervaes family’s/Dervaes Institute’s bullying of the urban homestead movement by claiming trademark status over the commonly-used, generic terms “urban homesteader” and “urban homestead”. You’ll note I categorically refuse to link to them (except as necessary, see below) and refuse to place any symbol next to those terms, period. They are, as always, welcome to come on along and try to send me a cease and desist letter in addition to those they’ve already sent out.

Last night, someone on the Facebook page devoted to collecting and disseminating information about this issue posted a rather amusing – and, for the Dervaes, illustrative of their hypocrisy – link to a post by Michael Nolan on his “My Earth Garden” blog.

Let’s backtrack a moment, and review the series of whiny posts the Dervaes made to their blog after things took off when they started this nonsense. One of those posts was entitled “What is Plagiarism?” (we’ll leave aside, for the moment, the fact that it doesn’t appear that any copying of the Dervaes’ lack of instructional content is particularly rampant, or that they don’t seem to understand the difference between trademark infringement and copyright infringement). Now, this sanctimonious post was no doubt intended to try to further their indefensible position. What it did was simply serve to be confusing to those of us who were wondering why on earth they’d be posting about an unrelated issue. Be that as it may, it was just as pompous as everything else they’ve posted. And, in another delicious dose of irony, that post itself was copied, in full, from the link given at the bottom of the post, where the Dervaes invited people to “read more”. It’s pretty redundant to invite people to read more at a link you’ve just copied verbatim without correctly attributing it, isn’t it (learn some MLA or APA styling, please)? Irony, like any other rich dessert, should be consumed in moderation.

However.

If you are going to post things like this, rattling your chains at the world and reveling in your victim mentality….perhaps you should not be lifting other peoples’ content word for word from their blogs – i.e., perhaps you should not be engaging in that very plagiarism you’re railing about in your haughty manner.

Perhaps, in fact, you should not be doing this. Because when you anger people and they start taking a very close look at you, they’re going to spot it when you steal content from other people. They’re going to spread the word about your hypocrisy far and wide via whatever means are available. And for the record, I took screenshots last night of the original and of the content thievery by the Dervaes, in the event they aim for some revisionist history denying that it occurred.

In short, they’re going to call you out over it, as well they should. Shame on you, for both the trademark fiasco and now this.

The past week has been quite the ride for anyone interested in sub/urban or rural homesteading. The previous two posts here sum up quite a bit of it, and one of the side effects of this brouhaha has been to get people interested in the Dervaes’ own history (and in particular, that of Jules). It got me interested, anyway, and I’m doing some research to put something together.

Another side effect has been to bring people together, as evidenced by the outpouring of solidarity posts Monday, with people weighing in on what it means to them to be able to call themselves urban homesteaders engaged in urban homesteading, no trademark or service marks required – and why should there be? The movement has been around far longer than Jules Dervaes’ massive ego and will continue to exist long after all of us are gone. This is as it should be: a movement like this belongs to no one person, but collectively to the people who choose to spend their time doing the things that need to be done to keep their little piece of the world out of the hands of giant corporations, keep themselves free of GMO/GE seed and livestock, and keep themselves in good, healthy food.

In my travels collecting posts for the big blog roundup, I found several instances of people saying their interactions with the Dervaes have been, shall we say, less than friendly – people who went to the Dervaes’ house to be met with attitudes less than friendly, people who have indicated the Dervaes were loathe to be included in media where other urban homesteaders would also be included, and people who saw the “You’re Cut Off” show on VH1 where the Dervaes were part of the setup and who were not particularly impressed. I also found a couple of people who said they were happy this debacle came falling down on the family’s head, simply because of the attitude they presented.

This last bit is one that creates a puzzler: is it wrong to actively cheer for a company – and have no doubt here, the Dervaes are a company – to fail or sink in stature? If this were, say, Monsanto, I doubt anyone other than shareholders in the stock of the company would be bothered by the Schadenfreude exhibited by some people. In this case, I’ve found very few supporters of the Dervaes after the actions they’ve taken, although I have found some rather baffling items from people simply reposting one of the Dervaes’ blog posts saying the cease and desist letters are a hoax and not from them (when they clearly are, and when the Dervaes have reposted the latter on their own site) and that they are “waiting to hear both sides of the story”. What side is not presented here? The Dervaes family managed to get a trademark on two common, generic phrases, and flat out lied on the application, claiming that they, and they alone, had used the terms so exclusively that they deserved to be awarded control of them. Hogwash. They then proceeded to send out cease and desist letters to various people, and when the furor began, claimed to be doing so because the recipients of those letters were “direct rivals” of theirs. Also hogwash: a blogger who received one of those letters is apparently engaged in no business activities relating to urban homesteading at all.

Let’s review that letter, shall we? The Dervaes sent a DMCA takedown notice to Google over a search return that linked to an Amazon listing of a book published two years before the Dervaes were awarded their mark. The Dervaes, in their attempts to justify this, posted a lengthy post on their blog regarding plagiarism, as if there is some rampant wholesale use of their material on sites all over the internet – something that is very hard to confirm, as it simply does not seem to be the case, and that still has no bearing on their constant defending their trademarks on these two generic terms. For those unaware, a DMCA complaint is something to be used for copyright infringement complaints, not trademark complaints. Sending one to Google over a search result is not only ridiculous, it is a misuse of the DMCA process – something that can (and should) result in penalties against the Dervaes for that misuse, although it probably will not.

There is currently a petition at change.org to revert the granted trademark, and the EFF has taken up the fight in response to the Dervaes’ insane posturing against the authors of the book linked above, as if they can somehow backdate their mark grant. The EFF gave the Dervaes until Friday, February 25, to respond. We’ll see what happens on that front.

In the meantime, people have been weighing in on the “what now?” part of this episode. For us, based on something someone posted to the Facebook protest page, that meant hastily putting up some forums, divided into regions, to enable people to find one another more easily, and beginning work on a collection of links, also divided into regions, so people would know who their neighbors are. It meant explaining some concepts of the DMCA and how some providers choose to deal with those notices. It meant other people doing their own aftermath posts about the whole issue:

It meant the Dervaes going to complete silence on the issue itself, going silent on their blog and Twitter account for days, and then, when finally posting on their blog once more, acting as if nothing had ever happened. A curious note on the latter activity: when they began to post once more (one with a sanctimonious quote from Desiderata, to lead, no less, as if they were victims rather than instigators), the first post was open to comments, yet no comments appeared. I mentioned to people that they very likely had their comments under heavy moderation. Comments on the post after that one were immediately closed – I suspect the moderated queue on the first rapidly filled with comments that were not as supportive as they would have liked.

As for the people who decided to not support any of the Dervaes’ activities in a financial sense once this fiasco occurred: that seems to be working. In the course of research, I’ve had to return to their site from time to time, and on the ever-present donation block, which constantly lists their money goal ($25K at the moment), their total collected since this dam broke has not changed from the $525 mark.

It can be rather ironic sometimes – in the true sense of the word, and not the Alanis Morissette sense – that people who advocate for a certain change get change. It just isn’t quite the one they thought they would be getting.

For a case in point, we need look back no further than the antics of the Dervaes family and the rather disastrous public relations/business debacle they’ve created. For those not familiar with the subject, just read the post linked above, and then come back to this one.

From what I have been able to glean, the first notices sent out by Dervaes were on or about February 13. This flew under the radar for a few days and then really exploded on February 18-19. In that span, word spread, someone created a new Facebook page (over 4000 people now) in support of the pages that Facebook had pulled down, and, most importantly, an “Urban Homesteaders Day of Action” was organized to take place today, all via the Internet. In a broader sense, this, to me, is one of the most useful aspects of the ability to share information in the times in which we live. Despite protestation from the Dervaes that they were not “suing bloggers” and not “sending out cease and desist” notices, this is exactly what they were in effect doing, semantics aside. Because they love to talk about themselves, and because people had posted the very notices they had sent out, it was very easy to confirm all of this, and point to their own Tweets as less than truthful.

Reading through some of the backhistory of the Dervaes’ various enterprises, it is clear that they – or at least the patriarch of the clan – believe that what they are doing is some kind of revolutionary act, even though people have been doing exactly the same thing for hundreds of years. It’s rather self-aggrandizing to claim that you are the “founder” of urban homesteading or that what you are doing is so distinct and unique that you are deserving to be the sole holder of claims to phrases that have been in use for generations before you came along.

Still, there is and never has been a doubt in my mind that people will often work against their best interests. For people whose first exposure to urban homesteading was the Dervaes’ rather flashy, photo-laden (but practical information poor) site, the family may hold a higher rung on the ladder than other people who simply blog or write about what’s going on in their back yards or on their properties without constantly patting themselves on the back as if they’d invented the very concept and without constantly shilling for donations to continue their “outreach” (which apparently includes trips overseas). In this case, the Dervaes have certainly worked against any goodwill they have built and worked on for the past ten years. It takes a stunning amount of arrogance to believe that you are the center of any universe, whether it is in politics, sports, or urban homesteading. While the Dervaes may get a lot of press and a lot of coverage through their efforts to obtain same, much of that serves whatever other purpose lies behind the facade of their greater plan to – again, ironically, given the furor over the trademarks in question – get away from the urban and form a commune in the middle of nowhere. The question has to be asked: if that is your intent, what is the point of claiming these specific phrases as your own? The other thought that comes to my mind is that the stated goal, plus the other various writings from Dervaes, reminds me much more of Jim Jones than it does The Beatles.

Today, various people around the globe – because yes, the Internet is a global sort of thing – are declaring themselves urban homesteaders, in defiance of trademark claims that cannot possibly stand any legal test. Why the USPTO approved these, after denying the Dervaes back in 2008, is a complete mystery, and someone was clearly asleep at the wheel on that one. While the Dervaes point to other common terms that people have trademarked, that does not excuse their actions in this case, either by gaining the trademarks or by foolishly attempting to enforce them.

With that said, here’s the beginning of the roundup of posts people have made today in support of a movement that began long ago and, luckily for us all, remains fluid and growing today.

The EFF Weighs In – please read this if you read nothing else, including the PDF of the letter sent to the Dervaes (and from your friendly neighborhood web host, please update your Acrobat Reader on a regular basis)

There will be more to come as folks pop up with their posts, and of course the various sites above, plus the Facebook page, will have links.

One very real result of the Dervaes’ actions is one they likely never anticipated: they have managed, in the span of one week, to create an even more integrated, more associative urban homesteading community than they could have created otherwise. Unintended consequences, I’m sure, but it has worked out in the best sense of the word “community” for everyone else.

The business and goodwill to which I refer in the title is not my business or goodwill – those are both fine. It is, rather, the business and goodwill previously generated by the Dervaes family in Pasadena, CA. I’m not linking to them, now or ever, for reasons that will become clear soon enough. You can do a search and find them easily enough, I imagine. These people – a father and three adult children who all live at home – run a site that used to be called Path to Freedom and that is now apparently called The Modern Urban Homestead (or, as their header seems to suggest, Path to Freedom, with a subtitle of The Modern Urban Homestead). They have been mastering the art of self-promotion and solicitation of donations to their “nonprofit” organization – which is incorporated as a church – for years now.

I stumbled across them a few years ago, checked out the site, blog, and whatnot, and never became a frequent visitor. I never linked to them, either, from my site. I would pop in from time to time, but that number could be counted on one hand in the past two years. The fact is, I found the site to not be terribly useful for practical applications, and heavy on the self-righteousness, aren’t-we-cool meter. I’ve never thought the writing was particularly good, and it certainly isn’t well-proofed before being released. In addition, I always caught a weird, almost cult-like vibe from the site, something echoed by others here and there.

This is not to say it’s strange for adult children to live with their parents. These days, it’s more and more common given the economy and other circumstances. But reading the posts and watching a couple of the videos from the press they’ve managed to attract just made me think more “cult” than “commune”. I give them credit for doing the work necessary to do what they do, for building themselves a brand of sorts, even though they’re not as huge as they’d like to believe, and for the nonstop self-promotion. It takes time and energy to do that. The constant “donate” vibe and/or “purchase stuff from us” I’m not terribly fond of, but if they want to always seem like a fund drive, so be it. It’s their thing.

It also takes time and energy to do incredibly foolish things. In the past several days – while I was working on my own urban homestead (or rural homestead, or, as I like to call it, “the ranch”), apparently the Dervaes, in a serious case of myopia combined with arrogance, began sending out cease and desist letters because they managed to get the Patent and Trademark Office (PTO) to allow them to trademark the terms “urban homestead” and “urban homesteading”. Now, to hear them tell it, those were not actually c&d letters at all. Oh no: they were “informational notices” designed to tell the recipients just how they should be using these terms, among others, complete with the trademark symbol and acknowledging that they belong to the Dervaes. There is even a helpful suggestion of alternate phrases to use as “generic terms” rather than the very same generic terms people have been using long before the Dervaes family decided they need to suck up to every media tit they could find. Here’s a sample of one of those quaint “informational notices”, sent to Google. Notices were also sent to individual bloggers, a library, a Denver-based community, and others, including to the authors of a book called The Urban Homestead, published before the trademark was even granted, and to Facebook, which instantly pulled down at least four pages, without regard for the validity of the claim. Here’s a tip to the Dervaes family, trying to defend this: you don’t have to use the words “cease and desist” for it to be a cease and desist letter. Here’s another tip: urban homesteading is not your “intellectual property”, as you claim in your silly notice. It is an idea and movement that has been around longer than you have. It will continue to be such.

So what happened? As you might imagine, the community of urban homesteading people didn’t care very much for this strongarm tactic. People began to comment negatively about this on Twitter, on the Dervaes’ Facebook page, and on their site. A new Facebook page sprang into life, garnering (at this point) almost 3500 people who like the page in just over 24 hours. A Twitter feed urging people to dump the Dervaes, and other general Tweets about the issue.. Numerous negative posts have been made in all sorts of places about this incredibly stupid move:

After all this negative publicity for their boneheaded move, did the Dervaes see the error of their ways, pull the trademark application, and apologize for pissing off – and pissing on – the very community that made them what they are? Nope. In the spirit of politicians like Sarah Palin, they doubled down and went on the offensive. They posted a series of posts on their own blog whining about how people are misinterpreting their protection of their “unique” version of urban homesteading, whining on Twitter that people should try to see “the truth” and not be taken in by “hoaxes” (hey, you sent out the notices, that’s no hoax), blamed bloggers and rivals for the issues and accused them of not reporting the “facts”, when the “facts” were their own words, claimed to be doing this out of the good of their hearts, by trademarking the phrases before some corporation did – ironic, given that they are a corporation and are acting like one – taking down their facebook page, turning off comments on their blog, taking down the forums on one of their other sites for “database work”, posting strawman arguments about plagiarism as if this has anything to do with trademarks and as if there is no mechanism to deal with copyright infringement, and not replying to questions sent directly to them. They then began weaseling their way around their own words by claiming they were not suing bloggers or sending “stop or pay” notices – and yet in the notice they themselves posted to show what they had been sending out, the legal threat is clearly there, indicated by the boilerplate “we can resolve this without resorting to legal action” phrasing. On their latest blog post, they disingenously link to what they call “news” but which is their own press release, and which represents the ultimate doubling down on this. You can find the press release on Yahoo or via a link in the comments on some of these sites, or you can get to it from the reaction from the OC Weekly, which is worth a read itself.

Let’s examine part of that so-called “news item”:

“No threat was made against anyone’s first amendment rights; yet, there has been a heated argument in the media against what should have been the Dervaeses’ normal rights to protect their trademarks.”

If there is one thing that drives me absolutely bats, it’s people who cannot or will not understand what the First Amendment actually means. Here’s another tip for the socially and legally challenged Dervaes: you cannot make any threats against someone’s right to say what they want based on the First Amendment. You are not the government. The First Amendment was written to prohibit the government from infringing on the rights of people to speak their mind (with certain common sense limits). And amazing as it is, peoples’ ability to speak their minds also allows them to comment on your idiocy in this matter, while you have the ability to cry about it. Isn’t that wonderful?

As it turns out, when you irritate a large group of people, they’re going to go off and start finding out anything they can about you. Like the fact that Jules Dervaes appears to be some kind of end of the world religious type, based on the sites found – and now, mostly removed or redirected to attempt to sanitize history. This would explain that strange cult-like vibe I was getting, after reading through some of these pages via archives. The next tip for you: it’s very, very difficult to completely sanitize your history, and your history speaks volumes. You remind me quite a lot of the guy complaining to us that his name came up in a search as appearing in several posts on a site we host and demanding the removal of those posts and for us to forbid the user from the mere mention of his name. That, of course, was something we certainly were not going to do. I suppose he, and you, should have picked battles more wisely.

As a topper to this ego-fest, Jules Dervaes claims to be the “founder of the urban homestead movement” on his eponymous site. Just because you tell yourself something like that, it does not magically make it true. You are not the “founder” of urban homesteading. You’re someone trying to capitalize on it by engaging in litigious and egregious practices by attempting to trademark common phrases you did not coin, and a movement for which you are no leader, and by trying to shut down other sites you deem as competition. Also, sorry to break this you, but your site was certainly not the “first” ever about urban homesteading.

What has it gained the Dervaes family by trying to strongarm people people, businesses, and organizations with this silly trademark battle over common, generic phrases? Disdain, disgust, and an avalanche of negative publicity from the very base that used to support them. People have already removed their Facebook page from their lists, unfollowed them on Twitter, started a petition to the PTO to revoke the trademarks, removed links to their sites from their link pages/blogrolls, stated they will never donate another cent to their constant fundraising, and publicly refused to purchase another item, whether it’s a shirt or a seed, from them.For my part, now that I have finished my research across their site, I will never visit it again, just like so many other people who have now seen them for what they really are.

You want to know what real community is? You’ve just seen it in action: it is bold, it is swift, it does not forget, it votes with its dollars, and it ensures that searches for your family name or site names will reveal the underhanded nature of this attempted power grab.

I am refusing to use the trademark symbol next to the common phrases urban homestead and urban homesteading. I am refusing to substitute any of the phrases helpfully provided in the nonsensical notice that has been sent out. If you would like to contest this, feel free to send a notice to my web host – oh wait, I AM my own web host, and I’d tell you to pound sand. So, Jules, feel free to try to sue me over use of your so-called trademark. I’d be delighted to pull examples of prior art from those very same Mother Earth News magazines you note on your own site in your fluffed up bio page, which were around long before you decided you were king of the urban homesteading mountain. I’d be just as delighted to collect attorney fees and court costs from you for such frivolous action.